Senators wrestle with death penalty vote

State Sen. Allan Kittleman is torn.

When lobbied by the ACLU and the NAACP to repeal Maryland's death penalty, Kittleman asks how he can ensure the most heinous murderers will never kill again.


When approached by fellow senators or state's attorneys who want to keep capital punishment, Kittleman questions whether there can be a foolproof way to ensure the state doesn't kill an innocent person.

"My mindset on this has always been divided," said Kittleman, a Howard County Republican who hopes to skip his own committee to listen to another panel's death penalty hearings before the legislation reaches the Senate floor. "It really is an issue that I'm struggling with, and I want to make sure I do the right thing."


Like a handful of other publicly undecided senators, Kittleman's internal struggle has made him a target in a behind-the-scenes lobbying press conducted in part by elected officials, prosecutors, religious groups, a Catholic bishop, the wrongly accused and advocates who have strong views on one side or the other.

In a divided chamber considered key to overturning the death penalty, Kittleman and a few other senators may cast the deciding votes on whether to uphold Maryland's narrowly written capital punishment law or to erase it from the books for the first time in 35 years.

The death penalty debate, perhaps the most emotional issue of the General Assembly session, does not break cleanly down party lines as lawmakers choose instead to yield to constituent views, emotion or their moral beliefs.

A pro-capital punishment Democrat has vowed to join with Republicans in a filibuster if necessary, while a Republican leader promised to quietly cast his vote for repeal. Of the handful of undecideds, some are in a greater state of consternation than others.

"How do I balance ensuring the safety of our citizens with also protecting civil liberties and civil rights?" Kittleman asked. "I think that's a dilemma that a lot of people are facing."

Before the hearings have begun, death penalty opponents are confident they have the votes for repeal. Their measure, pushed by Gov. Martin O'Malley, has attracted 21 co-sponsors — three shy of the necessary majority in the Senate, which will take up the matter first. If they win there, they expect an easier path in the House of Delegates.

"We've been doing this long enough, and counting votes long enough, that we have a sense of where folks are at," said Jane Henderson, who has worked for Maryland Citizens Against State Executions since 2001.

"This is an idea whose time has come," Henderson said. "I would argue that this has been happening over the past 20 years. People support the death penalty in theory, but when they look at it, they realize we can't do it right."


The more loosely organized death penalty supporters, who have been slower to mobilize this year, expect a close fight that they still believe they can win. The last time advocates attempted repeal, in 2009, lawmakers ultimately recast the state's death penalty law to require a high standard of proof.

As a result of the change that year, prosecutors can seek the death penalty only when they have DNA evidence, a videotape of the crime or a video-recorded confession by the killer.

"Not only is it targeted to the worst of the worst, there are assurances there that an innocent person won't be affected," said Baltimore County State's Attorney Scott D. Shellenberger, who has been an outspoken proponent of keeping Maryland one of 33 states to allow the death penalty.

Shellenberger has targeted 25 senators, and said he is building a coalition that he hopes will include correctional officers and the Fraternal Order of Police to help sway the vote.

"It was close then, it's close now," Shellenberger said of the 2009 debate. "It's certainly an issue about which reasonable minds can have a difference of opinion. As long as that's the case, it will always be close."

A recent poll by OpinionWorks of Annapolis found Maryland voters divided on the issue, with 48 percent opposed to repeal and 42 percent in favor.


While five people currently sit on death row — three for crimes from 1983 — Maryland has had a de facto moratorium on the death penalty. A judge in 2006 overturned the rules for carrying it out. Maryland law calls for the use of three drugs in lethal injection, but one of them is no longer available.

O'Malley, who first attempted to repeal the law in 2007, argues that it is costly and an ineffective deterrent to crime. Keeping it, he said puts Maryland in the company of some of the world's most repressive regimes.

Capital punishment supporters argue that retaining the theoretical threat of the death penalty both satisfies a sense of justice and gives prosecutors a bargaining chip to get a sentence of life without possibility of parole. The death penalty is necessary, they argue, for a convict with a life sentence who kills a correctional officer while in prison.

Thirty years ago, Sen. John Astle came to the General Assembly as a supporter of the death penalty. This year, repeal advocates see him as an ally, though he says he has reservations.

The Anne Arundel Democrat has been visited by Auxiliary Bishop Denis J. Madden of Baltimore and Kirk Bloodsworth, who spent years on death row before he was exonerated by DNA evidence. But Astle says he's still not ready to vote for repeal without deciding how to punish inmates with life sentences who commit another crime.

"Even when I was a proponent, you still have this feeling inside that it's a horrible thing to deliberately take someone's life," he said.


Sen. Ron Young, a Democrat from Frederick, said he has grappled with the death penalty for decades, since he prepped for a college debate. He knows repeal advocates count him in their corner, but he says he's approaching the vote "with hesitation."

"There's that emotion and passion. 'Damn it, [the murderers] didn't care, so why should I?' But I'd like to think I'm better than that," Young said.

The lobbying efforts have not touched the resolute, whose convictions are swayed neither by party nor argument.

"I think to myself, 'What if my daughter was a victim of one of these crimes, or a family member?' " said Sen. Robert J. Garagiola, a Montgomery County Democrat who supports capital punishment.

"It's more from the gut," Garagiola said. "It would be different if Maryland had a hundred-some people on death row and we were executing people every other week. In this state, it's used sparingly to begin with."

Sen. Ed Reilly, an Anne Arundel Republican and minority whip, created a page of talking points against capital punishment. They include that fiscal conservatives should support repeal because it is less costly than the death penalty, though he relies on his moral conviction as a Catholic.


"As a leader of the caucus, it would be inappropriate for me to stand on the floor and twist arms and try to convince people. It is a very, very personal decision to all 47 members of the chamber," Reilly said. "Even if I wasn't in leadership in the Republican caucus, I probably wouldn't be an active participant. There's plenty of people out there motivating others."